Forensic Psych

Unreasonable Doubt: The Potentially Deathly Impact of a Misunderstood Legal Concept

This is a paper I just submitted in class about a misunderstood legal concept we’ve all heard of: reasonable doubt. This is a work in progress and therefore I may change it in the near future. Hopefully it will spark someone’s interest. Hope you enjoy, and as always, this is my work so please do not steal. Thanks!


The court systems in theUnited Statesshould be taking every caution to ensure that defendants are getting a fair trial, but this is not always the case. Jurors on capital punishment cases are not well-informed about what reasonable doubt means and in cases where they are informed, reasonable doubt is still an unclear concept (Lillquist, 2002; Wright & Hall, 2007). These jurors often use low standards of proof to justify the death penalty. Some of them have stated that they only needed 51% certainty of guilt in order to convict (Lillquist, 2002). With this being the case, it poses a danger to the defendant in a case because, as Lillquist mentions, defendants are more likely to be convicted by jurors who use low thresholds of reasonable doubt and low standards of proof. There have been suggestions and attempts at developing ways to better explain “reasonable doubt,” but there is still not a consensus on how to handle this (Dhami, 2008; Hardaway, 2008; Solan, 1999; Wright & Hall, 2007). The court systems throughout theUnited Statesneed to develop the concept of reasonable doubt more fully at the risk of wrongfully convicting and condemning innocent people to death.

Keywords: reasonable doubt, death, capital punishment, guilt, innocence, standard of proof

Unreasonable Doubt: The Potentially Deathly Impact of a Misunderstood Legal Concept

            While not highly publicized, there are some people questioning the effectiveness of the legal concept known as “beyond a reasonable doubt,” also simply known as “reasonable doubt.” While not necessarily deemed a controversy by the public, it is arguable that reasonable doubt is indeed a controversial topic, especially when it involves the death penalty. The court systems in theUnited Statesneed to develop reasonable doubt more fully at the risk of wrongfully convicting and condemning innocent people to death because jurors are not instructed well enough in the concept of reasonable doubt. When a person is facing a possible death sentence, jurors must take reasonable doubt seriously because their decision could have a lasting impact on a case where the defendant’s life is at stake.

According to Hardaway (2008), reasonable doubt is defined differently by different jurisdictions and different individuals. There is no consensus or uniform definition. In fact, it is just a confusing point; each jurisdiction handles reasonable doubt in a different way. Some courts do give some instructions and further explanations while others do not. Take for example this explanation in Sandoval v.Californiain 1994 that reasonable doubt is,

[N]ot a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge (Greenhouse, 1994, para. 18).

There are varying definitions of reasonable doubt available. Some are fairly understandable, such as the one previously mentioned, while others are believed to lead to even further confusion in many cases (Wright and Hall, 2007). One confusing and odd example cited by Solan (1999) describes reasonable doubt as, “…not a doubt based upon sympathy or whim…or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty…” (p. 113). This definition does no good in further defining the term and giving clarity to the concept, but rather just sounds offensive and probably led to further confusion and distraction amongst the jurors. However, there are other ways of explaining reasonable doubt besides these qualitative definitions. Other jurisdictions use quantitative instructions where the juror has to be certain of the defendant’s guilt within a certain percentage range. For example, the jurors must be able to be at least 90% certain that the defendant is guilty before they can convict. Another example is known as the direct rating method where a juror must rate how likely it is that the defendant is guilty on a 0 to 100 percentage rating scale. Other jurisdictions do not define reasonable doubt in a qualitative or quantitative way. In fact, some do not define it at all for the jurors because it is believed to be a self-defining term (Dhami, 2008; Hardaway, 2008; Solan, 1999).

There are arguments that all this variation in procedure between jurisdictions is not something to worry about, but others believe that it is problematic. There are several problems to be discussed. One possible problem involves the existence of an assumption that jurors understand what reasonable doubt entails, but in fact, they are often confused about it and do not comprehend what it means (Lillquist, 2002). The jury is instructed at the very end of the trial to convict the defendant only if they are certain the defendant is guilty beyond a reasonable doubt. Lillquist suggests that this timing is inappropriate because the jurors need the entire trial to fully comprehend what “reasonable doubt” actually means. This inappropriate timing leaves each juror to hurriedly interpret reasonable doubt and this leads to even more confusion for the juror. When a juror is left to interpret it for him or herself, this will have an impact on the conviction (Dhami, 2008; Hardaway, 2008). This could be problematic because jurors who personally interpret the concept of reasonable doubt are looking at it in a skewed manner (Hardaway, 2008;Hobbs, 2005). It has been found that jurors often have skewed opinions about what reasonable doubt means. One example of this is stated by Dhami (2008) who says that the offense type alone can and probably will influence how jurors interpret reasonable doubt. Another example of how jurors have these skewed opinions is seen inHobbs(2005) who reminds us that public perception of criminal cases and the legal system are shaped by the media. The jurors come from the public and have been shaped by all of their past exposure to media coverage of either the legal system or of cases in general. Other examples have been provided by Lillquist (2002). He explains that jurors are more likely to convict if the defendant has a prior criminal record and if the crime was shocking. This would indicate that a juror is likely to raise or lower their standard of proof and their beliefs about reasonable doubt based on factors such as these.

Lillquist (2002) also informs us that it has been empirically shown that jurors do indeed vary in what they consider proof, which further reveals that juror understanding of reasonable doubt is certainly skewed. Some reports by Lillquist show jurors needing only 51% certainty of guilt in order to convict a defendant. That does not seem like a very high percentage of certainty of guilt, especially when it is in a capital punishment case. In fact, it sounds as though the jury is sentencing without much certainty at all. In addition to this example of a low standard of proof, it is possible, Lillquist states, that jury members are more likely to lower their reasonable doubt threshold (standard of proof) if the offense is considered a crime that could have affected the jury’s own loved-ones or even affected the lives of the jurors themselves. This would mean that the jury was more likely to convict the defendant if they believed that the crime could affect someone in their life. Many, if not most, crimes can probably be seen as a situation that could affect anyone, anywhere. Is this tendency to have a low standard of proof something that develops throughout the trial or is it something that comes before the trial even begins?

It is fairly safe to say that juries are biased going into capital punishment cases. It has been found that jurors tend to start out with a bias toward the death sentence in a case where capital punishment is a possibility (Eisenberg & Wells, 1993). Garvey (1998) tells us that people who are prone to feel hesitant about capital punishment are not even allowed on juries for capital punishment cases (Garvey, 1998). Moreover, Garvey goes on to state that death-qualified jurors, those jurors allowed on death penalty cases, are inherently more likely to convict. Garvey also informs us that jurors who sit on a death-penalty jury are less likely to be moved by either mitigating or aggravating circumstances. Indeed, the majority of death penalty jurors surveyed by Garvey said that they were just as likely to vote for death whether or not the victim’s family had suffered severe grief, whether or not most community members were outraged by the crime and wanted the death penalty, or whether or not the victim’s family requested the death penalty. They were also just as likely to vote for death regardless of the victim’s status, with the exception of a child, in which they said they would be even more likely to vote for death. It is as though the jurors have lowered their standard of proof before the trial has even started. These biases could be potentially dangerous if the defendant is not actually guilty. This all leaves us with one unanswered question, namely, what can be done to help jurors better understand the concept of reasonable doubt in order to ensure that every defendant gets a fair trial that involves the highest standard of proof and the fewest number of biases?

There are several suggestions about how to help jurors better understand reasonable doubt. However, as this is somewhat of a controversial topic, there is not one single, agreed-upon answer. As previously stated, Wright and Hall (2007) have suggested that jurors are typically somewhat confused and unsure of what reasonable doubt actually means. In addition, the explanations of the court, if given, oftentimes tend to confuse jury members even more. It has been suggested that judges should explain what reasonable doubt means because they are more knowledgeable about legal terms than are naïve jury members. In fact, Wright and Hall did their own study looking at the effect of instructing a juror about reasonable doubt on the juror’s verdict and belief in the defendant’s guilt. The jurors who were instructed further heard the following explanation about reasonable doubt, “You do not have to be certain of the defendant’s guilt. You may be able to imagine a scenario in which the defendant is not guilty, but still believe the defendant is guilty ‘beyond a reasonable doubt’” (p. 93). They found a significant interaction; juror instruction decreased the jury members’ threshold for a guilty verdict, which means that when instructed further about reasonable doubt, jurors were less likely to vote a guilty verdict. Instruction also decreased jury members’ belief in guilt of the defendant.

Wright and Hall’s study in 2007 goes on to suggest that if jurors are instructed, the definition of “reasonable doubt” must be clear so that there will be less variation in how the definition is interpreted amongst the jury members. This will help the jury to use the same, clear criteria when deliberating instead of each juror personally interpreting “reasonable doubt.” While some believe that personal interpretation is a viable option, there are others that believe that it does not provide a clear enough meaning for jurors (Dhami, 2008; Hardaway, 2008; Solan, 1999). Hardaway (2008) and Solan (1999) have suggested that if there is not going to be a universal definition of  the phrase “beyond a reasonable doubt,” then the phrase itself should be changed so that it will be a clearer, self-defining term. Hardaway suggests that “firmly convinced” and “no doubt” are the clearest self-defining terms while Solan suggests that “beyond a conceivable doubt” is the best term to use. They each believe that their preferred term will help jurors better interpret the concept of “reasonable doubt.”

On top of developing better, clearer phrases or definitions, there are additional studies that make other suggestions. One study proposes that if a jury has any lingering doubts about the guilt of the defendant whatsoever, that is one of the most powerful factors that improved the chances of a defendant getting a life sentence over a death sentence (Sundby, 1998). This is one of the most powerful mitigating facts in a case. In fact, about 77% of the jurors who took a survey said that they would at least be a little less likely to vote for death in a case if they had any doubts left about the defendant’s guilt (Garvey, 1998; Sundby, 1998). This would suggest that the defense team may want to focus on factors that will put doubt in the minds of the jurors, especially in cases where the defendant could be sentenced to death. Another study suggests that direct rating methods and the membership function method both focus on reducing false convictions (Dhami, 2008). The direct rating method involves making a juror rate how certain they would have to be that the defendant is guilty on a 0% to 100% scale before convicting them, which makes the jurors more conscious of the decision they are making. When jurors are faced with a capital punishment case, these studies are even more relevant and important because a human person’s life is at stake. When this is the case, a juror must be incredibly certain of their decision so that they do not risk sentencing an innocent person to death.

There have actually been attempts in the past at changing the manner in which “reasonable doubt” is presented to jurors and in the court system general. Hardaway (2008) discusses several of these. The first one he talks about is a bill that was filed inMassachusettsby Governor Mitt Romney. The bill states that there must be significant scientific and physical evidence in order for a jury to convict someone and that the jury must have no doubt that the defendant is guilty before convicting him. Another attempt at law-related change that Hardaway mentions is the Model Penal Code which approved a proposal that stated that in order for a person to be sentenced to death, there must be no doubt about the defendant’s guilt. Hardaway states that there may be items for jurors to consider before they decide on a defendant’s guilt. Jurors oftentimes do not hear all the evidence in capital cases, and the evidence that is presented is not always reliable. This suggests that juries may want to change the way they deliberate by taking this into consideration and raising their reasonable doubt threshold. This is especially true when they are hearing a capital punishment case because the jurors hold a life in their hands. If there has been anything to doubt in a capital punishment case, such as unreliable evidence, the jury should hold to a higher standard of proof. Lillquist (2002) asserts that capital punishment cases should indeed have a higher standard of proof in comparison with other criminal cases; a standard of proof that involves something near to absolute certainty, which is higher than most other cases. Lillquist mentions, however, that this is not usually what occurs in practice. With this possibility, one can certainly argue that reasonable doubt and standards of proof should be handled differently in capital punishment cases.

Making these sorts of changes is important, especially for capital punishment cases because human lives are at stake. These changes must be taken seriously because convicting an innocent person is exactly the opposite of justice in the eyes of the public. According to the Death Penalty Information Center there have been 138 people exonerated from death row between 1973 and the present. That is a lot of people who have been sentenced to death but then exonerated based on new evidence. These kinds of cases make one wonder what threshold of reasonable doubt juries used. If they had used a higher level, maybe these cases would not have been sentenced to death. The death penalty is obviously a serious charge and jurors must take it seriously from start to finish. Jurors need to understand what reasonable doubt entails, especially in capital punishment cases because these cases are determining the life or death of a person who may or may not be innocent.


Dhami, M. K. (2008). On measuring quantitative interpretations of reasonable doubt. Journal of Experimental Psychology: Applied, 14, 353-363.

Eisenberg, T., & Wells, M. T. (1993). Deadly confusion: Juror instructions in capital cases. Cornell Law Review, 79, 1-17.

Garvey, S. P. (1998). Aggravation and mitigation in capital cases: What do jurors think? Columbia Law Review, 98, 1538-1576.

Hardaway, R. (2008). Beyond a conceivable doubt: The quest for a fair and constitutional standard of proof in death penalty cases. New England Journal on Criminal and Civil Confinement, 34, 221-289.

Hobbs, P. (2005). Unreasonable doubt: Manipulating jurors’ perceptions in a closing argument at trial. Studies in Law, Politics, and Society, 35, 107-142.

Innocence and the Death Penalty. (n. d.). In Death Penalty Information Center. Retrieved from

Lillquist, E. (2002). Recasting reasonable doubt: Decision theory and the virtues of variability. UC Davis Law Review, 36, 85-197.

Solan, L. M. (1999). Refocusing the burden of proof in criminal cases: Some doubt about reasonable doubt. Texas Law Review, 78, 105-147.

Sundby, S. E. (2008). The capital jury and absolution: The intersection of trial strategy, remorse, and the death penalty. Cornell Law Review, 83, 1557-1598.

Wright, D. B., & Hall, M. (2007). How a “reasonable doubt” instructions affects decision of guilt. Basic and Applied Social Psychology, 29, 91-98.

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